#### Ward and Others’ Appeal.

, 1. A levy and sale of partnership property under an execution for the individual debt, of one of the partners, passes his interest only; this can be determined only by an account of the partnership affairs.

2. King & Morrow carried on mining; execution was issued against King for his individual debt, and his interest in the partnership sold by th'e sheriff! *Meld,*that under the act of April 9th, 1872 (Preferences to Laborers), the laborers of the firm had no claim on the proceeds of the sale.

3. There was no conversion of the partnership *title*in the property; *the*laborers’ liens did not attach to the proceeds, but remained upon the partnership property until its conversion by such a sale as would entitle them to come oil the proceeds as partnership effects.

October —, 1875.

Before Asnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

*271Appeal from the Court of Common Pleas of *Armstrong*County, of October and November Term, 1875.

On the 5th of August, 1874, Samuel C. King and Jacob V. Painter, by virtue of a warrant of attorney, entered judgment in the Court of Common Pleas of Armstrong County, against Samuel N. King, for $370.87. On this judgment a testatum fir fa. was issued to Butler County. King, the defendant, was a partner with Samuel Morrow, under the firm name of King & Morrow, in a coal lease in Butler County. The debt for which the judgment was entered was King’s individual debt. The sheriff of Butler County, under the testatum, sold the interest of King, and paid into court in Armstrong County $273 50.

Jeff. Reynolds, Esq., was appointed auditor, to report distribution. The claimants before him were M. V. B. Ward and others, laborers at the coal mines for the firm of King & Morrow, and the execution creditors. He reported awarding the fund to the laborers, under the act of April 9th, 1872, Pamph. L., 47, section 1, 2 Br. Purdon, 1464, pi. 1, providing preferences for laborers about mines, etc.

On exeepiions the Court of Common Pleas reversed the report, Boggs, P. J., delivering the opinion, as follows :

“. . . King and Painter claim the proceeds of sale on their execution upon which the sale was made; and certain labor creditors of the firm of King & Morrow, on notice of their claims to the sheriff, also claim the funds. The question is: which of the parties claiming the funds are entitled to receive them ? If there is any point of law settled in Pennsylvania it is, that in case of partnership the joint effects belong to the firm, and not to the parties, each of whom is entitled only to a share of what may remain after the payment of the partnership debts, and no greater interest could be derived by a voluntary assignment of his share, or by sale of it on execution. A separate execution creditor sells, not the chattels of the partnership, but the interest of the partner incumbered with the joint debts; and the joint creditors have therefore no claim to the proceeds in such case. The proceeds of the sale represent the individual interest of the partner sold, and not that of the partnership, and must be appropriated accordingly. This doctrine is ruled in the case of Doner *v.*Stauffer, 1 Penna. Reports, 198, and a long line of cases following establish it to be the. rule of law: Vandike’s Appeal, 7 P. F. Smith, 12;.Deal *v.*Bogue, 8 Harris, 228; Baker’s Appeal, 9 Id., 76; Cooper’s; Appeal, 2 Casey, 262 ; McCormick’s Appeal, 7 P. F. Smith,, 54; Vandike *v.*Rosskam, 17 Id., 384; Whigham’s Appeal, 13 Id., 199 ; Meily *v.*Wood, 21 Id., 488. The execution *272creditor can sell upon a fi. fa. all the right, title, interest, and claim of the individual defendant in the partnership, and the sheriff’s vendee can institute either an action of account render or file a bill in equity, to obtain what he may be entitled to receive, if anything, as purchaser at sheriff’s sale: Vandike *v.*Rosskam, 17 P. F. Smith, 334; Knerr *v.*Hoffman, 15 Id., 129. In the light of these authorities, it is manifest that the auditor erred in appropriating the funds to the labor claims..... The auditor’s distribution is therefore set aside, and the proceeds of sale, after the costs of audit, are given to the execution creditors, S. C. King and J. V. Painter.”

Ward and the other laborers appealed from the decree, assigning for error that the Court reversed the report of the auditor, and awarded the fund into court to the execution creditors.

*J. Smullin*and *E. S.*Golden, for appellants.

The act of 1872 was intended to give the laborer a preference over *all*creditors in *all*cases of execution, etc., and gives a lien *“*to the extent of the *interest*of said owners;” for the reason that not only is the partnership liable, but the individual partner in his separate estate. The other partner’s interest might be sold on a separate execution, and thus the entire title of the firm would pass to the purchaser: Kelly’s Appeal, 4 Harris, 59 ; and the laborer’s preference under the act would be an imaginary thing.

*J.*Gilpin, for appellees.

The act of 1872 is against common right, and must be strictly construed. A partner’s interest in the firm property is an incorporeal, intangible thing, a right to an account and to a share after all the debts are paid: Whigham’s Appeal, 13 P. F. Smith, 199. There can be no lien upon what is intangible. The purchasers at sheriff’s sale got no part of the firm property. If the laborers are allowed to take their claims from King’s interest, these execution creditors, being his individual creditors, would get nothing; while Morrow’s individual creditors, afterAyards selling his interest, would get their money, the labor liens having been paid from King’s interest.

Judgment was entered in the Supreme Court, November 4th, 1875.

Per. Curiam :

It is a well-settled principle of the law of partnership that a levy and sale'of partnership property, un-, •der an execution for an individual debt of one of the partners, pass only the interest of that partner in the partnership *273effects ; -and that can be determined only by an account of the partnership affairs, exhibiting the resulting interest of that partner. There being no conversion of the partnership title in the property, the laborers’ lien does not attach to the proceeds of the sale, but must remain upon the partnership property until it is converted by such a sale as will entitle them to come in upon the proceeds as partnership effects.

Decree and order of the court affirmed, at the cost of the appellants, and the appeal dismissed.